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 Brad Garber's Case Law Update - January 29, 2007 On this date: Political essayist Thomas Paine was born in 1737. William McKinley (25th President) was born in 1843. W.C. Fields (William Claude Dukenfield) was born in 1880. John Raitt (Bonnie's dad) was born in 1917. Author of "Desert Solitaire," Edward Abbey, was born in 1927. In 1954, Oprah Winfrey was born in Kosciusko, MI. Edgar Allen Poe's "The Raven" was published in 1845. In 1861, Kansas became the 34th state. In 1920, Walt Disney started his first job as an artist, at $40/week. A hurricane hit Oregon & Washington in 1921. In 1959, Disney's "Sleeping Beauty" was released. The first US female Figure Skating championship was won by Peggy Fleming, in 1966. "Down Under," by Men At Work hit #1, in the UK, in 1983. Steven Poti, 59 Van Natta 158 (2007) (Order on Reconsideration) In this case, the ALJ upheld Safeco's compensability and responsibility denial of Claimant's right wrist ligament tear. The judge also upheld SRS's responsibility denials of Claimant's right wrist injury, and its compensability and responsibility denial of Claimant's occupation disease claim for the same condition. The judge went on to award Claimant's attorney $1,500, payable by SRS, for its "pre-hearing" rescission of a compensability denial. The Board affirmed the Opinion & Order in its entirety, including the attorney fee assessment. SRS requested reconsideration to dispute the assessment of the attorney fee, alleging that there was no statutory basis for the assessment of a fee, under ORS 656.386(1). On review, SRS argued that Claimant did not "finally prevail" over any denial in a hearing before the ALJ, or on review before the Board and, therefore, was not entitled to an assessed fee. The Board addressed this argument, as follows: "Although SRS focuses on the 'finally prevails' language in ORS 656.386(1)(a), the issue here pertains to a 'rescission' of a denial prior to a decision by an ALJ." The Board continued, as follows: "Here, as noted above, SRS denied compensability and responsibility of claimant's right wrist ligament tear on April 1, 2005. (Ex. 42). On April 6, 2005, claimant retained his former attorney. The following day, his former attorney requested a hearing appealing the denial. On August 4, 2005, SRS modified its denial to deny only responsibility for claimant's right wrist condition. (Ex. 55). The hearing was held on November 29, 2005 and SRS therefore rescinded its compensability denial prior to a decision by the ALJ." Under these circumstances, the Board determined that, even though Claimant did not "finally prevail" over any denial, he was entitled to an assessed fee, nonetheless. While the Board found that Claimant's attorney was "instrumental" in obtaining a pre-hearing rescission of a compensability denial, there was no discussion about what the attorney did that was particularly instrumental. Affirmed Griffin v. SAIF, WCB 0403854; CA A128985 (January 24, 2007) Claimant sought judicial review of a Board order that affirmed a determination that Claimant's injury did not arise out of and in the course of his employment. Claimant was a part-time employee who wanted to become a sword and knife maker. Employer permitted Claimant to use its shop and grinding equipment to practice grinding knives and swords when he was not otherwise working. Claimant had access to all shop equipment and worked on personal items during his lunch breaks and days off. Claimant kept some of his finished products at home. Claimant was hired to receive deliveries of steel; he was not a grinder. On May 19, 2004, Claimant was not scheduled to work, and he received no wages on that date. He called the employer and received permission to grind a butcher knife that he had purchased the previous weekend. Employer did not grind that type of knife as a regular part of its business. Claimant went to the shop and started grinding his knife. After he had been grinding for about 15 minutes, the knife broke, launching a piece of steel into Claimant's eye, blinding him. Claimant filed a claim for workers' compensation benefits, alleging that his injury arose out and in the course of his emloyment. He argued that, because he was on the employer's premises and was permissively using its equipment when he was injured, the injury arose out of his employment. Amazingly, the Court agreed!! It, then, went on to discuss whether Claimant was injured "in the course of" his employment. It observed, "The injury-producing activity was not performed for employer's benefit, it was performed on a day off, it was not an activity for which claimant was paid, and it was an activity as to which employee was on a personal mission of his own." Ultimately, the Court determined that Claimant did not satisfy the second prong of the AOE/COE test. Affirmed
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